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e-CFR data is current as of September 29, 2020

Title 7Subtitle APart 1Subpart O → Subject Group


Title 7: Agriculture
PART 1—ADMINISTRATIVE REGULATIONS
Subpart O—Conditions in FERC Hydropower Licenses


General Provisions

§1.601   What is the purpose of this subpart, and to what license proceedings does it apply?

(a) Hearing process. (1) The regulations in §§1.601 through 1.660 contain rules of practice and procedure applicable to hearings on disputed issues of material fact with respect to mandatory conditions that the Department of Agriculture, Forest Service (Forest Service) may develop for inclusion in a hydropower license issued under subchapter I of the Federal Power Act (FPA), 16 U.S.C. 791 et seq. The authority to develop these conditions is granted by FPA section 4(e), 16 U.S.C. 797(e), which authorizes the Secretary of Agriculture to condition hydropower licenses issued by the Federal Energy Regulatory Commission (FERC).

(2) The hearing process under this part does not apply to recommendations that the Forest Service may submit to FERC under FPA section 10(a), 16 U.S.C. 803(a).

(3) The FPA also grants the Department of Commerce and the Department of the Interior the authority to develop mandatory conditions and prescriptions for inclusion in a hydropower license. Where the Forest Service and either or both of these other Departments develop conditions or prescriptions to be included in the same hydropower license and where the Departments agree to consolidate the hearings under §1.623:

(i) A hearing conducted under this subpart will also address disputed issues of material fact with respect to any condition or prescription developed by one of the other Departments; or

(ii) A hearing requested under this subpart will be conducted by one of the other Departments, pursuant to 43 CFR 45.1 et seq. or 50 CFR 221.1 et seq., as applicable.

(4) The regulations in §§1.601 through 1.660 will be construed and applied to each hearing process to achieve a just and speedy determination, consistent with adequate consideration of the issues involved and the provisions of §1.660(a).

(b) Alternatives process. The regulations in §§1.670 through 1.674 contain rules of procedure applicable to the submission and consideration of alternative conditions under FPA section 33, 16 U.S.C. 823d. That section allows any party to the license proceeding to propose an alternative to a condition deemed necessary by the Forest Service under section 4(e).

(c) Reserved authority. Where the Forest Service has notified or notifies FERC that it is reserving its authority to develop one or more conditions at a later time, the hearing and alternatives processes under this subpart for such conditions will be available if and when the Forest Service exercises its reserved authority.

(d) Applicability. (1) This subpart applies to any hydropower license proceeding for which the license had not been issued as of November 17, 2005, and for which one or more preliminary conditions have been or are filed with FERC before FERC issues the license.

(2) This subpart also applies to any exercise of the Forest Service's reserved authority under paragraph (c) of this section with respect to a hydropower license issued before or after November 17, 2005.

§1.602   What terms are used in this subpart?

As used in this subpart:

ALJ means an administrative law judge appointed under 5 U.S.C. 3105 and assigned to preside over the hearing process under this subpart.

Alternative means a condition that a license party other than the Forest Service or another Department develops as an alternative to a preliminary condition from the Forest Service or another Department, under FPA sec. 33, 16 U.S.C. 823d.

Condition means a condition under FPA sec. 4(e), 16 U.S.C. 797(e), for the adequate protection and utilization of a reservation.

Day means a calendar day.

Department means the Department of Agriculture, Department of Commerce, or Department of the Interior.

Discovery means a prehearing process for obtaining facts or information to assist a party in preparing or presenting its case.

Ex parte communication means an oral or written communication to the ALJ that is made without providing all parties reasonable notice and an opportunity to participate.

FERC means the Federal Energy Regulatory Commission.

Forest Service means the USDA Forest Service.

FPA means the Federal Power Act, 16 U.S.C. 791 et seq.

Hearing Clerk means the Hearing Clerk, OALJ, USDA, 1400 Independence Ave., SW., Washington, DC 20250; phone: 202-720-4443, facsimile: 202-720-9776.

Intervention means a process by which a person who did not request a hearing under §1.621 can participate as a party to the hearing under §1.622.

License party means a party to the license proceeding, as that term is defined at 18 CFR 385.102(c).

License proceeding means a proceeding before FERC for issuance of a license for a hydroelectric facility under 18 CFR part 4 or 5.

Material fact means a fact that, if proved, may affect a Department's decision whether to affirm, modify, or withdraw any condition or prescription.

Modified condition or prescription means any modified condition or prescription filed by a Department with FERC for inclusion in a hydropower license.

NEPA document means an environmental document as defined at 40 CFR 1508.10 to include an environmental assessment, environmental impact statement (EIS), finding of no significant impact, and notice of intent to prepare an EIS. Such documents are issued to comply with the requirements of the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., and the CEQ Regulations Implementing the Procedural Requirements of NEPA (40 CFR parts 21500-1508).

NFS means the National Forest System and refers to:

(1) Federal land managed by the Forest Service; and

(2) The Deputy Chief of the National Forest System, located in the Forest Service's Washington, DC, office.

Office of Administrative Law Judges (OALJ) is the office within USDA in which ALJs conduct hearings under the regulations in this subpart.

Party means, with respect to USDA's hearing process:

(1) A license party that has filed a timely request for a hearing under:

(i) Section 1.621; or

(ii) Either 43 CFR 45.21 or 50 CFR 221.21, with respect to a hearing process consolidated under §1.623;

(2) A license party that has filed a timely notice of intervention and response under:

(i) Section 1.622; or

(ii) Either 43 CFR 45.22 or 50 CFR 221.22, with respect to a hearing process consolidated under §1.623;

(3) The Forest Service; and

(4) Any other Department that has filed a preliminary condition or prescription, with respect to a hearing process consolidated under §1.623.

Person means an individual; a partnership, corporation, association, or other legal entity; an unincorporated organization; and any Federal, State, Tribal, county, district, territorial, or local government or agency.

Preliminary condition or prescription means any preliminary condition or prescription filed by a Department with FERC for potential inclusion in a hydropower license.

Prescription means a fishway prescribed under FPA sec. 18, 16 U.S.C. 811, to provide for the safe, timely, and effective passage of fish.

Representative means a person who:

(1) Is authorized by a party to represent the party in a hearing process under this subpart; and

(2) Has filed an appearance under §1.610.

Reservation has the same meaning as the term “reservations” in FPA sec. 3(2), 16 U.S.C. 796(2).

Secretary means the Secretary of Agriculture or his or her designee.

Senior Department employee has the same meaning as the term “senior employee” in 5 CFR 2637.211(a).

USDA means the United States Department of Agriculture.

You refers to a party other than a Department.

§1.603   How are time periods computed?

(a) General. Time periods are computed as follows:

(1) The day of the act or event from which the period begins to run is not included.

(2) The last day of the period is included.

(i) If that day is a Saturday, Sunday, or Federal holiday, the period is extended to the next business day.

(ii) The last day of the period ends at 5 p.m. at the place where the filing or other action is due.

(3) If the period is less than 7 days, any Saturday, Sunday, or Federal holiday that falls within the period is not included.

(b) Extensions of time. (1) No extension of time can be granted to file a request for a hearing under §1.621, a notice of intervention and response under §1.622, an answer under §1.625, or any document under §§1.670 through 1.674.

(2) An extension of time to file any other document under this subpart may be granted only upon a showing of good cause.

(i) To request an extension of time, a party must file a motion under §1.635 stating how much additional time is needed and the reasons for the request.

(ii) The party must file the motion before the applicable time period expires, unless the party demonstrates extraordinary circumstances that justify a delay in filing.

(iii) The ALJ may grant the extension only if:

(A) It would not unduly prejudice other parties; and

(B) It would not delay the decision under §1.660.

§1.604   What deadlines apply to the trial-type hearing and alternatives processes?

(a) The following table summarizes the steps in the trial-type hearing process under this subpart and indicates the deadlines generally applicable to each step. If the deadlines in this table are in any way inconsistent with the deadlines as set by other sections of this subpart or by the ALJ, the deadlines as set by those other sections or by the ALJ control.

Process stepProcess dayMust generally be completedSee section
(1) Forest Service files preliminary condition(s) with FERC01.620.
(2) License party files request for hearing30Within 30 days after Forest Service files preliminary condition(s) with FERC1.621(a).
(3) Any other license party files notice of intervention and response50Within 20 days after deadline for filing requests for hearing1.622(a).
(4) NFS refers case to ALJ office for hearing and issues referral notice to parties85Within 55 days after deadline for filing requests for hearing1.626(a).
(5) Parties may meet and agree to discovery (optional step)86-91Before deadline for filing motions seeking discovery1.641(a).
(6) ALJ office sends docketing notice, and ALJ issues notice setting date for initial prehearing conference90Within 5 days after effective date of referral notice1.630.
(7) Party files motion seeking discovery from another party92Within 7 days after effective date of referral notice1.641(d).
(8) Other party files objections to discovery motion or specific portions of discovery requests99Within 7 days after service of discovery motion1.641(e).
(9) Parties meet to discuss discovery and hearing schedule100-104Before date set for initial prehearing conference1.640(d).
(10) ALJ conducts initial prehearing conference105On or about 20th day after effective date of referral notice1.640(a).
(11) ALJ issues order following initial prehearing conference107Within 2 days after initial prehearing conference1.640(g).
(12) Party responds to interrogatories from another party as authorized by ALJ120-22Within 15 days after ALJ's order authorizing discovery during or following initial prehearing conference1.643(c).
(13) Party responds to requests for documents, etc., from another party as authorized by ALJ120-22Within 15 days after ALJ's order authorizing discovery during or following initial prehearing conference1.645(c).
(14) Parties complete all discovery, including depositions, as authorized by ALJ130Within 25 days after initial prehearing conference1.641(i).
(15) Parties file updated lists of witnesses and exhibits140Within 10 days after deadline for completion of discovery1.642(b).
(16) Parties file written direct testimony140Within 10 days after deadline for completion of discovery1.652(a).
(17) Parties complete prehearing preparation and ALJ commences hearing155Within 25 days after deadline for completion of discovery1.650(a).
(18) ALJ closes hearing record160When ALJ closes hearing1.658.
(19) Parties file post-hearing briefs175Within 15 days after hearing closes1.659(a).
(20) ALJ issues decision190Within 30 days after hearing closes1.660(a).

(b) The following table summarizes the steps in the alternatives process under this subpart and indicates the deadlines generally applicable to each step. If the deadlines in this table are in any way inconsistent with the deadlines as set by other sections of this subpart, the deadlines as set by those other sections control.

Process stepProcess dayMust generally be completedSee section
(1) Forest Service files preliminary condition(s) with FERC01.620.
(2) License party files alternative condition(s)30Within 30 days after Forest Service files preliminary condition(s) with FERC1.671(a).
(3) ALJ issues decision on any hearing request190Within 30 days after hearing closes (see previous table)1.660(a).
(4) License party files revised alternative condition(s) if authorized210Within 20 days after ALJ issues decision1.672(a).
(5) Forest Service files modified condition(s) with FERC300Within 60 days after the deadline for filing comments on FERC's draft NEPA document1.673(a).

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